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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

ILLINOIS UNION INSURANCE COMPANY v. MIDWOOD LUMBER & MILLWORK, INC. et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
1:13-cv-02466 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Eastern District of New York
Date Filed: 
Apr 23 2013

"AS AND FOR A FIRST CLAIM FOR RELIEF
(Declaratory Judgment- Designated Premises)

33. ACE repeats and realleges the allegations contained in Paragraphs I through 32 as if fully set forth herein at length.

34. Coverage, if any, under the Policy is only with respect to bodily injury or property damage arising out of the ownership, maintenance, or use of a designated premises.

35. The subject accident occurred at 227 Carlton Avenue, County of Kings, City and State of New York.

36. 227 Carlton Avenue, County of Kings, City and State of New York is not a scheduled designated premises in the Policy.

37. There is no coverage under the Policy for the Underlying Actions because they arise from an incident that occurred away from any scheduled location on the Designated Premises Endorsement.

38. Based on the foregoing, ACE has no duty to defend MID WOOD in the Underlying Actions.

39. Based on the foregoing, ACE has no duty to indemnify MIDWOOD in the Underlying Actions.

AS AND FOR A SECOND CLAIM FOR RELIEF
(Declaratory Judgment- Auto Exclusion)

40. ACE repeats and realleges the allegations contained in Paragraphs 1 through 39 as if fully set forth herein at length.

41. It is alleged that the underlying incident occurred as Midwood was using its truck, operated by a Mid wood employee, to load and unload material on the roof of the building.

42. On information and belief, the Underlying Actions arise out of the use of an auto.

43. The Policy's auto exclusion bars coverage for "bodily injury" arising out use of an auto.

44. Based on the foregoing, ACE has no duty to defend MID WOOD in the Underlying Actions.

45. Based on the foregoing, ACE has no duty to indemnify MIDWOOD in the Underlying Actions.

AS AND FOR A TIDRD CLAIM FOR RELIEF
(Declaratory Judgment- Recoupment)

46. ACE repeats and realleges each and every allegation set forth in paragraphs 1 through 45 of this Complaint as if fully set forth at length herein.

47. ACE is providing MID WOOD with a defense in the Underlying Actions although ACE has determined that the Underlying Actions do not arise out of a scheduled designated premises in the Policy and coverage may be barred by the auto exclusion.

48. By reason of the foregoing, upon a fmding of no coverage for MIDWOOD, Plaintiff is entitled to recoup defense costs incurred on behalf of these defendants in the Underlying Actions, in an amount to be proven at the time of trial.

AS AND FOR A FOURTH CLAIM FOR RELIEF
(Declaratory Judgment- Necessary Party)

49. ACE repeats and realleges each and every allegation set forth in paragraphs I through 48 of this Complaint as if fully set forth at length herein.

50. Plaintiff seeks this Court's determination, pmsuant to the Declaratory Judgment Act, 28 U.S.C. §§2201-2202, concerning the respective rights and obligations of the parties under the Policy in connection with the Underlying Actions.

51. An actual and justiciable controversy exists among the parties as to which a declaratory judgment setting forth their respective rights and obligations under the Policy is necessary and appropriate.

52. Under Rule 19(a) of the Federal Rules of Civil Procedure, a necessary and otherwise proper party is one who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

53. Defendants LABOARD, SIMMS, and REGIS are plaintiffs in the Underlying Actions, and they were allegedly injured as a result of the matters alleged therein against MIDWOOD.

54. Defendants 231 CARLTON, BORO, KINGS, ALBANNA, INTEGRITY, S&B MASONRY, and PROFESSIONAL are defendants in one or more of the Underlying Actions that have or may assert claims against MID WOOD in Underlying Actions.

55. As parties in the Underlying Actions, LABOARD, SIMMS, REGIS, 231 CARLTON, BORO, KINGS, ALBANNA, INTEGRITY, S&B MASONRY, and PROFESSIONAL have an interest relating to the subject matter of the action and will be bound by a determination in ACE's favor.

56. Therefore, upon a declaration of non-coverage for MIDWOOD, ACE is entitled to a declaration that it has no obligation to LABOARD, SIMMS, REGIS, 231 CARLTON, BORO, KINGS, ALBANNA, INTEGRITY, S&B MASONRY, and PROFESSIONAL for the matters alleged in the Underlying Actions. Plaintiff demands trial by jury on all issues herein.

WHEREFORE, ACE demands judgment on the Complaint as follows:
1) A declaration that there is no coverage for the Underlying Actions because 227 Carlton Avenue, County of Kings, City and State of New York, is not a scheduled designated premises under the Policy;
2) A declaration that there is no coverage for the Underlying Actions because they arose out ofthe use of an auto;
3) A declaration that ACE has no obligation to defend or indemnify MIDWOOD in the Underlying Actions;
4) A declaration that ACE may withdraw the defense of MIDWOOD m the Underlying Actions;
5) As necessary and otherwise proper parties, LABOARD, SIMMS, REGIS, 231 CARLTON, BORO, KINGS, ALBANNA, INTEGRITY, S&B MASONRY, and PROFESSIONAL are bound by the Court's determinations herein, and have no right to make any claim under the Policy with respect to the claims against MID WOOD in the Underlying Actions;
6) A declaration that ACE is entitled to recoup defense costs incurred on behalf of

MID WOOD in the Underlying Actions; and
7) For such other and further relief as the Court may deem just, proper and equitable, together with the costs, attorneys' fees and disbursements of this action. Dated: Hawthorne, New York April23, 2013"

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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